Chattisgarh High Court

Reshma Khan vs Personnel Manager S.E.C.L on 12 August, 2021

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                                                                           NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR
                          Reserved for orders on :28/07/2021
                             Order passed on :12/08/2021
                            WP227 No. 1042 of 2018
      Reshma Khan, W/o Late Jani Khan, Aged About 26 Years, R/o
       Bhatgaon Colliery, Ward No. 10, Near Maszid, Surajpur, District Surajpur
       Chhattigarh. Present Address Kapoor Dafai, Chhota Bazar, Chirimiri,
       District Koriya Chhattisgarh., District : Koriya (Baikunthpur),
       Chhattisgarh
                                                                   ---- Petitioner
                                     Versus
     1. Personnel Manager, S.E.C.L. Kalyani Sub Area, Navapara Mines
        Bhatgaon, District Surajpur Chhattisgarh., District : Surajpur,
        Chhattisgarh
     2. Branch Manager, Indian Life Insurance Corporation, Branch Surajpur,
        District Surajpur., District : Surajpur, Chhattisgarh
     3. Rasida Bibi @ Ulekha, W/o Harun Khan, Aged About 55 Years, R/o
        Bhatgaon, P.S. Bhatgaon, District Surajpur Chhattisgarh., District :
        Surajpur, Chhattisgarh
     4. Safi Ahmad Khan @ Chintu, S/o Late Harun Khan, Aged About 24
        Years, R/o Bhatgaon, District Surajpur., District : Surajpur, Chhattisgarh
     5. Rafi Ahmad Khan @ Mintu, S/o Late Harun Khan, Aged About 24 Years,
        R/o Bhatgaon, District Surajpur Chhattisgarh., District : Surajpur,
        Chhattisgarh
     6. Regional Commissioner, Provident Fund Office, Gupteshwar, Jabalpur
        Madhya Pradesh., District : Jabalpur, Madhya Pradesh
     7. Gulshan Aara, D/o Late Harun Khan, Aged About 33 Years, Present
        Address Bartunga Colony, Bartunga Hill, Chirimiri Colliery, District
        Koriya Chhattisgarh., District : Koriya (Baikunthpur), Chhattisgarh


                                                               ---- Respondents

For Petitioner - Ms. Meena Shastri, Advocate.

For Respondent No.1 - Mr. Sudhir Kumar Bajpai, Advocate. For Respondent No.3, 4, 5 and 7- Mr. Surfaraj Khan, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV Order 12-08-2021

Heard.

1. This petition has been brought under Article 227 of the Constitution of

India being aggrieved by the order dated 24-09-2018 passed in the Civil Appeal

No.5A/2017 by the Court of Second Additional District Judge Surajpur in which

the appeal of the private respondents was partly allowed. The order of the Civil

Judge Class-I in Succession Case No.04/2011 dated 30-11-2016 was set aside

and the case was remanded to the Court of Civil Judge Class-I Surajpur with a

direction to frame issue on the pleading of divorce and grant opportunity of

hearing to the parties before passing any order.

2. The petitioner had filed an application under Section 372 of the Indian

Succession Act, 1925 (in short 'the Act, 1925'). which was registered as

Succession Case No.4/2011. It was pleaded that the petitioner is widow of

deceased Jani Khan who was employee in the SECL, therefore, she may be

declared successor for the purpose of receiving the service benefit of the

deceased. This application was contested by the private respondents who were

non-applicants before that Court. The application of the petitioner under

Section 372 of the Act, 1925 was dismissed by the order dated 30-11-2016.

The private respondents preferred appeal against this order which has been

decided by the impugned order with direction as mentioned herinabove.

3. Learned counsel for the petitioner submits that learned appellate Court

has in a manner granted liberty to the private respondents to collect evidence

in their favour. The question of the divorce could not have been dealt and

decided in a succession case. The claim of the respondents that they are

nominee and successor of deceased Jani Khan does not give them any

entitlement over the service benefits of the deceased. They shall be regarded

only as the custodian of the same. Reliance has been placed on the judgment

of this Court in Chhotu Dewangan and another vs Smt. Urmilabai and

others, 2007 (1) C.G.L.J. 56. It is submitted that proceeding under Section 372

of the Indian Succession Act, 1925 is summery proceeding. For declaration of

right of the nominee, a civil suit was required to be filed. Therefore, issuance of

succession certificate in favour of the petitioner should have been ordered.

Reliance has also been placed on the judgment of Hon'ble the Supreme

Court in the matter of Smt. Sarbati v. Usha Devi, AIR 1984 SC 346, in which it

was held that bare nomination in favour of a person does not confer any

beneficial interest with respect to the amount payable under life insurance

policy on the death of the insured. The amount so received can be claimed by

heirs of the assured in accordance with law of succession.

Reliance has also been placed upon the judgment of Hon'ble the

Supreme Court in the matter of Kattukandi Edathil Krishnan and another

Vs. Kattukandi Edathil Valasan and others, (2006) 9 SCC 166 on the point

of remand of case granting opportunities to the parties to make additional

pleadings and adduce additional evidence was whether a necessity, should be

considered.

It is submitted that the impugned order is not sustainable. The petitioner

has entitlement for grant of succession certificate in her favour. Therefore, the

impugned order be set aside and the petitioner be granted succession

certificate.

4. Learned counsel for the respondents No.1 made formal objection and it

is submitted that they shall comply with the order passed by this Court.

5. Learned counsel for the respondents No.3, 4, 5 and 7 opposed the

submissions made by the petitioner counsel and submits that the proceeding

under Section 372 of the Indian Succession Act is summery proceeding. The

Court cannot determine the entitlement of a party in such a proceeding except

for the party being a successor in accordance with the provisions under the

Indian Succession Act. It is clear that the petitioner is not a nominee in the

service record of deceased Jani Khan, therefore, no error has been committed

by the Court of Civil Judge Class-I in rejecting the application of the petitioner.

The question of maintainability of this petition is also raised on the ground that

Under Section 388 of the Act, 1925 clearly provides that a civil revision shall be

maintainable against the order passed by the District Judge in appeal.

Reliance has been placed on the judgment of the Division Bench of

Calcutta High Court in the matter of Gita Das and another Vs. Sefali Lata

Das, AIR 2018 CALCUTTA 80, in which it has been held that such an order

which is passed in appeal by the District Judge is revisable under Section 388

of the Act, 1925. Therefore, the present petition filed is not maintainable which

may be dismissed.

6. In reply it is submitted by learned counsel for the petitioner that there is

no specific provision under the Act, 1925 for preferring revision against the

appellate order passed under Section 384 of the Act, 1925, therefore, the

petition under Article 227 of the Constitution of India is maintainable.

7. Heard learned counsel for the parties and perused the documents.

8. The question of maintainability of this petition has to be decided first.

Sub-section 2 and 3 of Section 388 of the Indian Succession Act, 1925 are

relevant which are as under:-

"384. Appeal.--

(1) xxxxxx xxxxxx (2) An appeal under sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908 (5 of 1908). (3) Subject to the provisions of sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908 (5 of 1908), as applied by section 141 of that Code, an order of a District Judge under this Part shall be final."

9. According to the provision mentioned herein the District Judge has

exercised the power of appellate authority. Therefore, according to Sub-section

3 of Section 388 of the Act, 1925 the order passed by District Judge was

subject to provision as to reference or revision by the High Court. Subsequent

to which, the order would be regarded as final. This provision clearly provides

for filing of revision petition. The reliance of the petitioner in Chhotu

Dewangan and another vs Smt. Urmilabai and others (supra) is also a

decision on civil revision, before the High Court. As for the reason that there is

statutory remedy available to the petitioner by way of filing a revision petition

against the impugned order, this petition under Article 227 of the Constitution of

India cannot be regarded as maintainable. Hence, this petition is dismissed and

disposed off on the ground that it is not maintainable under Article 227 of the